Watching the Law

Iran - international law

2011-12-03T19:34:00.002Z

The Foreign and Commonwealth Office has stated:

"Speaking in the House of Commons on Wednesday, Foreign Secretary William Hague described the attack on the British Embassy in Iran on 29 November as "a breach of international responsibilities of which any nation should be ashamed." The Foreign Secretary said that the attack, in which Embassy buildings were vandalised and looted by demonstrators, was a grave violation of the Vienna Convention which states that a host state is required to protect the premises of a diplomatic mission against any intrusion, damage or disturbance. The Foreign Secretary expressed his gratitude for the strong statements of concern and support from the United States, the European Union, Germany, Poland, Russia, China and many other nations.
The British Embassy in Tehran has now been closed. All Iranian diplomatic staff have been ordered to leave the United Kingdom."

Further details of the events at the embassy in Tehran are at The Guardian 29th November - "Storming of British Embassy in Tehran worsens bilateral relations."

The Foreign Secretary is of course absolutely right in describing the event as a grave violation of the Vienna Convention on Diplomatic Relations 1961. Article 22 states:

Article 22

1.The premises of the mission shall be inviolable. The agents of the receiving State may not enter

them, except with the consent of the head of the mission.

2.The receiving State is under a special duty to take all appropriate steps to protect the premises

of the mission against any intrusion or damage and to prevent any disturbance of the peace of the

mission or impairment of its dignity.

3.The premises of the mission, their furnishings and other property thereon and the means of

transport of the mission shall be immune from search, requisition, attachment or execution.

Some of the background to the Vienna Convention may be seen at Audio Visual Library. and see also Paul Behrens writing in The Guardian 18th April 2011 - "The curious world of diplomatic relations."

Through fears relating to nuclear proliferation, tensions have been increasing between Iran and many other nations. The question is the subject of a number of United Nations Security Council Resolutions and also action by the European Union - see HM Treasury - Financial Services - Iran (Nuclear Proliferation).

An interesting document on the American position is Congressional Research Service - Iran Sanctions - 13th October 2011 (Kenneth Katzman) where it is noted that:

"The Obama Administration’s policy approach toward Iran has contrasted with the Bush Administration’s by attempting to couple the imposition of sanctions to a consistent, direct U.S. effort to negotiate with Iran on the nuclear issue. That approach was not initially altered because of the Iranian dispute over its June 12, 2009, elections. However, with negotiations yielding no firm Iranian agreement to compromise, since early 2010 the Administration and Congress have focused on achieving adoption of and implementing additional U.S., U.N., and allied country sanctions whose cumulative effect could compel Iran to accept a nuclear bargain."

It is exceptionally difficult to assess the actual impact of sanctions on the Iranian government. Frequently, sanctions only serve to make such governments even more obdurate and can have serious unintended consequences - see "The Power of Economic Sanctions where the following view is expressed:

"Sanctions are ultimately blunt tools of foreign policy because their deployment is rarely precise enough to affect only the target economy, and because they presuppose that economic harm will lead to the sort of political pressure that will benefit the instigating country. By using a sanction a country is assuming that it is truly able to influence the leadership of the target country, a highly implausible assumption suggesting that other governments are pliable. Sanctions ultimately are a battle of political wills, with the loser being the country whose economy cannot withstand the pressure."

Are we witnessing the playing out of a pre-planned trajectory to a war in Iran as, for example, Craig Murray appears to believe? Speaking to the Chilcot Inquiry, Tony Blair referred to Iran as the "2010 Question." It remains to be answered - see Watching the Law 29th January 2010.

It is worth recalling that the Iraq-Iran War lasted from 1980-88 and was extremely bloody and ultimately futile. The financial costs of military action against Iran would be massive not to mention the possible human costs and the likelihood of it triggering major conflict across the Middle East and, perhaps, beyond. The action relating to Libya in 2011 cost the UK an as yet officially undisclosed sum but may have been as high as £1.75 bn. Costs were certainly in the order of several million pounds per day. In the present desperate economic climate the question should be seriously asked whether the UK can afford to continue its present foreign policy stance with its "bottom line" of military action. In this context it is vital to note that the British Armed Forces are now at minimal strength and face further cuts.

Of course, it is entirely possible to make a case that an international military option - (as opposed to any UK unilateral action) - should not be taken off the table - see, for instance, The Telegraph "Iran: Why we need start the war coalition."

The author (Dan Hodges) argues - " ... let’s ask ourselves what the practical implications would be if the Stop the War coalition won. If David Cameron and Barack Obama and Ban Ki-moon stood up in unison and said, “under no circumstances will we attack Iran”. The sabres were sheathed. The nudges and winks ceased. The Iranians were formally informed that whatever machines of infernal damnation they chose to construct, the could do so free from any risk of a military response.

The world would be safer? The middle east more stable? The families of Jerusalem and Tel Aviv able to sleep more soundly in their beds?

"The military option is always a terrible one. But to remove it unilaterally from the table will not reduce the danger we face. It will increase it."

As things appear to stand, Cameron, Obama and Ban Ki-Moon are hardly likely to make any such statement. However, as former Foreign Secretary David Miliband put it, "a concerted diplomatic effort on Iran is needed now to prevent the world sleepwalking into another war in the Middle East.”

Head of Legal Blog - "Iran's clear breach of international law" - 29th November 2011

Jonathan Sumption QC - the F A Mann Lecture 2011

2011-11-15T18:51:00.007Z

Jonathan Sumption QC delivered the F A Mann Lecture at Lincoln's Inn on 9th November 2011. His theme was "Judicial and Political Decision-Making: The Uncertain Boundary." Mr Sumption has been appointed a Justice of the UK Supreme court but has not yet taken up the appointment. He is likely to do so in 2012. In the lecture, Mr Sumption looks at the extent of judicial review and asks whether the judiciary have now trespassed on to areas of policy which should be left to the appointed decision-maker.

Sumption Mann Lecture Final

The Commonwealth - Heads of Government Meeting - Australia 2011

2011-10-30T10:27:00.004Z

The Commonwealth Heads of Government held in Australia has drawn to a close.

One interesting development is that the 16 nations of which H.M. The Queen is Head of State have agreed to alter the Royal Succession so that male primogeniture will no longer apply. This proposal is explained on the No.10 website.

The meeting issued a Communique and also agreed to issue a report - "A Commonwealth of the People - Time for Urgent Reform" - prepared by an "Eminent Persons Group." The report has important implications for the future of the Commonwealth.

It is interesting to note that South Sudan has made approaches with a view to joining the Commonwealth.

Antonio Cassese: 1937-2011

2011-10-22T18:29:00.002+01:00

Antonio Cassese

The death has been reported of the Italian jurist Antonio Cassese - see Special Tribunal for the Lebanon . In recent times, few lawyers have done so much to develop a corpus of international criminal law. His text - "International Criminal Law" (here) is a masterful analysis of the current state of the law. See also his text "International Law" - Oxford University Press.

In 1993, Cassese became the first President of the International Criminal Tribunal for Yugoslavia (ICTY). The Tribunal's website states:

Judge Antonio Cassese (Italy)
President of the ICTY from 1993 to 1997
Born: 1937, Atripalda, Italy

Judge Antonio Cassese was the Tribunal’s first President, holding the position between 1993 and 1997. In those uncharted early years he was one of the key persons who won the necessary political and financial support for the Tribunal and turned it from a court on paper to a functioning international judicial institution. After his tenure as President, Judge Cassese
continued to sit as a Tribunal judge until February 2000. He participated in all the landmark judgements and decision rendered by the Appeals Chamber during his time at the ICTY.

Professor of International Law at the University of Florence since 1975, Judge Cassese has published extensively on issues of international human rights and international criminal law. He is the author of International Law and International Criminal Law published by the Oxford University Press, the co-founder and co-editor of the European Journal of International Law, and founder and editor-in-chief of the Journal of International Criminal Justice.

Judge Cassese has been granted Doctorates honoris causa by the Erasmus University at Rotterdam, Paris X University and the University of Geneva, and is a member of the Institut de Droit International. In 2002, he received the Grand Prix awarded by the Académie Universelle des Cultures, presided over by the Nobel Laureate Elie Wiesel, for "exceptional contribution to the protection of human rights in Europe and the world".

He was President of the European Committee for the Prevention of Torture (1989-1993) and Chairman of the Council of Europe Steering Committee for Human Rights (1987-1988). He has represented the Italian Government on many occasions at UN meetings on human rights and at the Geneva Diplomatic Conference on the Humanitarian Law of Armed Conflicts (1974-77).

In October 2004, Judge Cassese was appointed by UN Secretary General Kofi Annan to be the Chairperson for the International Commission of Inquiry on Darfur, to investigate reports of violations of international humanitarian law and human rights law. The Commission’s findings and recommendations lead to the first referral of a situation by the UN Security Council to the International Criminal Court.

Cassese was also, until 9th October 2011, President of the Special Tribunal for Lebanon. He was succeeded at this Tribunal by former New Zealand judge Sir David Baragwanath.

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Google Scholar ... Scholarly articles Antonio Cassese International Law

The Death Penalty in the USA

2011-09-29T19:12:00.003+01:00

Following on from the executions of Troy Davis (pictured) in Georgia, USA, an article in The New Republic suggests that abolitionists may be closer to their goal than they think. This is a well considered article by Carol S. Steiker (Professor of Law at Harvard) and Jordan M. Steiker (of the University of Texas Law school).

Please see - "Why death penalty opponents are closer to their goal than they realize."

The State of Florida executed Manuel Valle after a wait of 33 years - see the article in The Guardian by Clive Stafford Smith - "Manuel Valle's 33 year execution." This execution was carried out by pentobarbital injection - said to cause excruciating pain. See "Manuel Valle's execution carried out amid fight over 'cruel' injection."

In the Valle case, one Justice Breyer in the Supreme Court of the USA dissented from the others. In his view, a delay of this length was cruel. See his dissenting judgment.

It is now almost 40 years since the Supreme Court of the USA decided Furman v Georgia 408 US 238 (1972). In this case, Associate Justice Thurgood Marshall said:

"No nation in the recorded history of man has a greater tradition of revering justice and fair treatment for all its citizens in times of turmoil, confusion, and tension than ours. This is a country which stands tallest in troubled times, a country that clings to fundamental principles, cherishes its constitutional heritage, and rejects simple solutions that compromise the values that lie at the roots of our democratic system.

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment."

That great judge could have no better legacy than the ultimate abandonment of capital punishment in the USA.

Thurgood Marshall's opinion in Furman v Georgia.

Updates: (1) Yugoslavia and the hunt for the suspects; (2) the Gibson "Torture" Inquiry

2011-08-04T11:43:00.009+01:00

Yugoslavia - In July, it was reported that the last of the individuals wanted by the International Criminal Tribunal for Former Yugoslavia (ICTY) was captured. The Guardian 4th August 2011 - "The hunt for former Yugoslavia's war criminals: mission completed" The recent appearance at The Hague of Goran Hadžíc marks the end of a hunt commenced in 1993 for 161 war crimes suspects. He was captured in Fruska Gora National Park (60 km west of Belgrade) on 20th July. It has been a lengthy and difficult process and has suffered from more than minimal political obstruction. The persistency of the ICTY prosecutor is to be commended.

Hadžíc's initial appearance before ICTY was on 25th July. Weekly updates from ICTY are available.

The Gibson Inquiry - Human Rights organisations boycott

In the U.K., on 6th July 2010, the government announced an inquiry into allegations that British personnel were complicit in the torture of persons abroad. The inquiry is under the Chairmanship of Sir Peter Gibson (a former Lord Justice of Appeal). However, the inquiry has been dogged by controversy ever since its conception. Civil Liberties organisations such as Liberty and Reprieve have been highly critical both in relation to the appointment of Gibson (who is the Intelligence Services Commissioner) and also the secrecy of the inquiry and the inability to question officials and operatives. A further criticism is that it will be the Cabinet Secretary who decides what can be published and not the judge.

It is reported that these bodies will be boycotting the inquiry - see BBC 4th August, The Guardian 4th August and The Independent 4th August.

See - the letter to the Inquiry from 10 Non-governmental organisations (pdf).

Liberty makes its position clear in their article - "When is an inquiry not an inquiry ..."

The Telegraph 4th August reported that some in the region of £12m has been paid by the British government to certain individuals held at Guantanamo Bay. This money has been paid under a confidential settlement between the government and the victims.

Without the involvement of bodies such as Liberty, the Gibson Inquiry is highly unlikely to command any public confidence.

Sir Peter Gibson has been Intelligence Services Commissioner since 2006 and is in his second term of office which expires on 31st March 2012.

Related posts - Foreign and Commonwealth Office guidance on reporting torture: The All Party Group on Extraordinary Rendition.

Addendum: "UK's secret policy on torture revealed" - Guardian 4th August.

The Guardian 5th August: MI6 torture / interrogation policy prior to 2010.

The Telegraph - Peter Oborne - "We covered up our involvement in torture. Now we must expose it."

Srebrenica

2011-06-03T16:44:00.004+01:00

Cemetery at Srebrenica

"I hope the very mention of the name “Srebrenica” will remind every child in the world that pride in our own religious and ethnic heritage does not require or permit us to dehumanize or kill those who are different. I hope and pray that Srebrenica will be for all the world a sober reminder of our common humanity" - President Clinton on 20th September 2003.

The International Criminal Tribunal for Former Yugoslavia (ICTY) has already concluded that the 1995 events at Srebrenica amounted to the crime of genocide - see Radislav Krstić appeal. The International Court of Justice agreed with this in 2007 when the ICJ held that Serbia had violated its obligation to prevent genocide (12 votes to 3) and also that Serbia had failed in its obligation to transfer Mladic for trial (14 votes to 1). Suspicions remain that Serbia had sheltered Mladic even after the ICJ ruling.

Ratko Mladic now stands indicted for his alleged part in the appalling events which are described here.

An exhumed body with blindfold and hands tied behind the back

A good day for International Criminal Justice

2011-05-26T15:25:00.006+01:00

ICTY Courtroom

The arrest of Ratko Mladic has been announced by the International Criminal Tribunal for Former Yugoslavia.

"Srebrenica Genocide: worst massacre in Europe since the Nazis" - The Guardian 10th June 2010

Mistakes the Mladic trial needs to avoid - Geoffrey Robertson QC - The Independent 28th May

The arrest of Bernard Munyagishari has been also been announced - he was indicted by the International Criminal Tribunal for Rwanda - The Guardian 26th May.

See Universal Jurisdiction - Resources for Practitioners

Addendum:

On 3rd June 2011, Mladic made his first appearance at The Hague. Videos of this may be seen on the International Criminal Tribunal's website.

Massacre of prisoners in Iran - "Do you think we should have given them sweets?" - The Iran Tribunal

2011-05-26T13:50:00.004+01:00

Iran

Vietnam - The Russell Tribunal

In 1966, the British philosopher and mathematician Lord Russell (1872-1970) set up, along with Jean Paul Sartre, a tribunal to consider United States Foreign Policy and Military Intervention in Vietnam. Representatives of 18 countries participated and hearings were held in 1967 in Stockholm and Copenhagen. Twenty-five notable persons formed the tribunal including a number of Nobel Prize winners. Neither Vietnam nor the United States of America participated and the tribunal was largely ignored by the media. The Tribunal reached, unanimously, a number of verdicts finding against the United States on matters such as the use of weaponry forbidden by the laws of war, inhumane treatment of prisoners etc - see Russell-Sarte Tribunal on Vietnam. It was inevitable that the tribunal was criticised as a "Kangaroo Court" by those who had the opportunity to participate but declined to do so. Of course, the tribunal had no legal force and could not try particular individuals.

This form of tribunal - essentially a private enterprise - contrasts with the approach to some events such as the International Criminal tribunal for the Former Yugoslavia (ICTY).

Iran in the 1980s - Report by Geoffrey Robertson QC - the Iran Tribunal

Iran Tribunal

This idea of a Tribunal has been adopted recently in relation to events which it is said took place in IRAN in the 1980s, a decade in which there was major war between Iraq and Iran resulting in the loss of in excess of half a million lives. The war lasted until August 1988 when it came to an end as a result of United Nations effort and Security Council Resolution 598. However, in the second half of 1988 there were many executions in Iran - some estimates say in excess of 4500. Those executed appear to be political dissidents who were opposed to the regime of Ayatollah Khomeini. Writing in The Guardian on 7th June 2010, Geoffrey Robertson QC called upon the United Nations to enforce international law by setting up a court to try the perpetrators of the massacres. Mr Robertson has produced a detailed report on the massacres.

In his Guardian article, Robertson stated that - "Most of the judges and officials who implemented the fatwa are still in high office in Tehran – under a supreme leader who, when asked about killing prisoners replied: "Do you think we should have given them sweets?"

A Tribunal - (intended to operate on similar lines to the Russell-Sartre Tribunal) - has been set up and John Cooper QC has become Chairman of a Steering Committee. The February 2011 Press release explains the way it is hoped to develop the Tribunal's work. John Cooper stated - “The work of the Steering Committee in creating, advising and facilitating the establishment of the Iran Tribunal will be vital if due process is to be observed at the future hearings. We are determined that the Tribunal discovers the truth about what happened to thousands of Iranian people and that justice is finally done.”

The HOME Page of the Tribunal sets out the background and the aims of the Tribunal and ways of supporting the tribunal may also be seen.

Further material is available at Amnesty International - "Iran: The 20th Anniversary of 1988 prison massacres"

Camp Ashraf and Iran Freedom

Camp Ashraf, Iraq

Many exiled Iranians are at Camp Ashraf in Iraq. The European Union has recently called on Iraq to respect their rights - see Declaration of 9th April 2011. This article in The Spectator is interesting.

See also British Parliamentary Committee for Iran Freedom

All Party Parliamentary Group on Extraordinary Rendition (APPG)

2011-05-24T10:00:00.002+01:00

Welcome to the APPG on Extraordinary Rendition
Saturday, 12 June 2004

The All Party Parliamentary Group on Extraordinary Rendition was established by Andrew Tyrie in December 2005. It is a cross party...

An All Party Parliamentary Group (APPG) continues to beaver away to try to unearth the truth about any British involvement in Extraordinary Rendition. The APPG - acting, it appears as "concerned citizens", has made requests to the Ministry of Defence for information. Such requests are possible under the Freedom of Information Act 2000 (FOI) but the Act contains several exemptions under which information can be withheld.

An appeal against the Ministry of Defence's refusal to release certain information has been heard by the Upper Tribunal (Administrative Appeals Chamber) comprising Blake J, Andrew Bartlett QC and Rosalind Tatum. The APPG was successful in part. See the judgment.

Addendum 16th May: It is reported by The Independent 15th May that Sir Peter Gibson's Inquiry - (into allegations that British personnel were complicit in the torture of detainees) - will not examine the question of "Extraordinary Rendition." Andrew Tyrie MP - chair of the APPG - condemns this as doing just half the job. Failure to properly examine this issue will inevitably result in public criticism and allegations of cover up.

Addendum 10th June: It is now reported that the Inquiry will consider rendition.

Death of a distinguished jurist - Moshe Landau

2011-05-14T11:57:00.007+01:00

A former Chief Justice of Israel - Moshe Landau - died on 1st May 2011 - aged 99. His contribution to Israeli law was truly outstanding.

See these articles reporting his death and looking at his remarkable career - Israel National News and Haaretz

In particular, his conduct of the trial of Adolf Eichmann will long stand as an example of how a fair trial can be achieved even when the defendant is an arch-enemy of the State. The 14 week trial was held in 1961 and, in accordance with Israeli law, three judges sat - Moshe Landau, Benjamin Halevy and Yitzhak Raveh. Sentence of death was passed in December 1961 and carried out on 31st May 1962. Eichmann's ashes were scattered in the Mediterranean Sea.

Judgment in Eichmann's case

A particularly striking article about Landau may be seen at the Ruthfully Yours blog.

Throughout his remarkable career in the law, Landau stands out as a truly independently minded judge who paid meticulous attention to detail. Above all, he had that one absolutely essential characteristic for a judge: courage.

The Telegraph 15th May - Obituary of Moshe Landau

Osama Bin Laden killed

2011-05-04T15:16:00.003+01:00

The United States Federal Bureau of Investigation (FBI) reported the death of Osama Bin Laden. President Obama said -

“Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan,” .... “A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama bin Laden and took custody of his body.”

It was later reported, much to the consternation of some Muslims, that the body was buried at sea.

According to the US Government, Osama Bin Laden was the mastermind behind the attacks on America on 11th September 2001 - usually abbreviated to 9/11. A number of "conspiracy theories" have grown up around these events.

See The Independent 4th May 2011 - Mr Geoffrey Robertson QC - who questions whether "justice" has actually been done.

Many questions are being asked over this operation which. it appears, was monitored by the US President and other senior government officials and which has undoubtedly given Obama a popularity boost with many American voters. In early April 2011, the U.K. agreed to triple aid for schools in Pakistan. Given the U.K.'s present economic difficulties, this was a very unpopular move by the British coalition government. Services within the U.K. are being drastically cut.

The trial of Khalid Sheikh Mohammed and four others who are held by the USA in connection with 9/11 will be by a Military Commission - see Amnesty.

Addendum 6th May: President Obama at "Ground Zero"

The International Criminal Tribunal for former Yugoslavia (ICTY)

2011-04-15T13:09:00.006+01:00

Gotovina

Markač

On 15th April 2011, judgment was delivered by the ICTY in the cases of Gotovina, Markač and Čermak - See the Tribunal's website and the summary of the judgment below. Gotovina and Markač now stand convicted of several crimes against humanity and violations of the laws and customs of war.

Čermak was acquitted on all counts. Markač was acquitted on one count of forcible transfer (a crime against humanity). Gotovina was sentenced to 24 years imprisonment (less 1956 days for time already in custody). Markač received 18 years (less 1477 days).

Judgment Summary ICTY

Executions in Ohio

2011-04-12T21:36:00.003+01:00

Clarence Carter is the latest person to be executed in the U.S.A. - this time in Ohio. There have been 12 executions in the USA this year and 1246 since executions resumed on 17th January 1977.

The details of executions carried in Ohio in recent times may be seen on the Ohio Department of Rehabilitation and Correction website. A list of scheduled executions is also published. Ohio has recently changed to the use of pentobarbital.

Death Penalty News reports on executions and pending executions around the world.

It is interesting that a nation which carries out so many executions also publishes (under Federal Law) a Human Rights Report which examines the state of human rights in other nations. The 2010 report may be read via the Opinio Juris website.

Addendum: On 17th May 2011, Ohio executed Daniel Lee Bedford. He was the the 45th to be executed in Ohio since 1999 and the 1250th in the USA since capital punishment resumed on 17th January 1977.

Arizona and then Alabama - continue with executions

2011-03-29T19:29:00.003+01:00

The U.S. State of Arizona has executed Eric John King by lethal injection for the murders, committed in 1987, of two men in a store. The case has a number of features which are not uncommon among prisoners executed in the USA. He came from a poor background; had an alcoholic and abusive father; got into drugs and alcohol by the age of 9; his mother held a gun to his head when he was 10; he left home at age 15 and got into a life of crime. He was convicted in 1991 - on evidence which ought to have given the appellate systems cause for serious concern - and sentenced to death. He was therefore held under sentence of death for 20 years. On 29th March 2011, Arizona's Department of Corrections website indicated that (including King) there were 131 prisoners on "death row." Since 1993, Arizona has executed 22 people by lethal injection. Prior to that the gas chamber was used and, in the early part of the 20th century, hanging. Surely it ought to be plain from such statistics that capital punishment does not actually act as a deterrent to crime.

See Washington Post 29th March
Arizona Department of Corrections

Addendum 30th March: "A final appeal against capital punishment" - Amy Goodman in The Guardian 30/3/11

Addendum 1st April: In the State of Alabama, William Glenn Boyd was executed by lethal injection on 31st March 2011. He, along with Robert Milstead, was convicted of two murders committed in 1986. The jury recommended life imprisonment without parole. That sentence was imposed on Milstead because he testified against Boyd in exchange for avoiding the death penalty.

Amnesty International report on the Death Penalty

2011-03-28T12:18:00.003+01:00

Amnesty International has issued a report on the use of the Death Penalty in 2010 - see Amnesty News Item and the report itself. The report indicates some reduction in the use of the Death Penalty though a considerable number of countries remain committed to its use - see The Guardian 28th March 2011 for a useful summary.

Some extracts from the main report:

In July 2010 the London-based Privy Council commuted the sentence of Earlin White, who had been sentenced to death for murder in Belize in 2003. In its judgement, the Privy Council indicated one reason for the commutation was the lack of assessment of the social welfare and psychiatric condition of the defendant at the time of sentencing. In June 2010 however, the Caribbean Court of Justice Act came into effect in Belize, renouncing the Privy Council and establishing the Caribbean Court of Justice as the final Court of Appeal for all civil and criminal cases in the country. Transitional provisions allow for pending appeals to be considered by the Privy Council.

See Earlin White v The Queen [2010] UKPC 22.

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Executions were recorded in the USA in 2010 as follows: Texas (17), Ohio (8), Alabama (5), Mississippi (3), Oklahoma (3), Virginia (3), Georgia (2), Arizona (1), Florida (1), Louisiana (1), Utah (1) and Washington (1). Once again, the majority of executions in the USA were carried out in a handful of states. Utah and Washington carried out their first executions since 1999 and 2001 respectively.

In March 2011, Illinois abolished the death penalty - Illinois Governor signs bill ending death penalty..

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Persons with mental impairment executed in USA

In 2010, Amnesty International was also concerned by the execution in the USA of people with significant mental impairments or after trials during which the juries did not hear available mitigating evidence at the sentencing phase. Holly Wood, a 50-year-old African American man with significant mental impairments, was executed by lethal injection in Alabama on the evening of 9 September. He had spent 16 years on death row. The presentation of mitigating evidence at the sentencing was minimal. In particular, there was no evidence at all presented about Holly Wood's mental ability despite the lawyers being in possession of an expert report indicating that Wood operated, “at most, in the borderline range of intellectual functioning”. Four federal judges on three courts concluded that he was denied adequate legal representation at the sentencing stage of his 1994 trial.

Jeffrey Landrigan, a 50-year-old Native American man, was executed in Arizona, on 26 October. He had been sentenced to death for the 1989 murder of Chester Dyer. At his trial in 1990, his lawyer did not present any mitigating evidence on his background of abuse and deprivation or its effects on him. In 2007, the retired trial judge said that she would not have passed a death sentence if she had heard such mitigating evidence, especially the sort of expert mental health evidence that had been presented during the appeals process. The former judge was among witnesses who appeared at a clemency hearing in front of the Arizona Board of Executive Clemency on 22 October 2010. She told the board that in her view Jeffrey Landrigan should have received a life sentence.

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Sodium Thiopental exports from the U.K.

A nationwide shortage of sodium thiopental, one of the three drugs used to execute prisoners by lethal injection led to the suspension of some executions at the end of the year. By the end of 2010, the pharmaceutical company Hospira, the sole manufacturer or supplier of this drug in the USA, had begun discussions with the Italian authorities about Hospira’s intention to resume production of the drug at its plant in Italy.29 On 25 October, a day before Jeffrey Landrigan’s execution, the Arizona Attorney General revealed that the state had obtained sodium thiopental from an unidentified source in the United Kingdom (UK). Following campaigning by abolitionist groups, on 6 January 2011, the UK Secretary of State for Business Innovation and Skills made a statement to the High Court of Justice indicating that the UK Department for Business Innovation and Skills would issue an order under s. 6 of the Export Control Act 2002 (ECA) controlling the export of sodium thiopental to the USA.

The Order made by the U.K. is the Export Control (Amendment) (No. 3) Order 2010 which will remain in force until 28th November 2011. It is not clear whether the British government will then issue a new Order. The making of this Order does not necessarily prevent export of this drug but its export has to be licensed by the British government.

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Given difficulties with obtaining sodium thiopental it seems that some US States have turned to pentobarbital - see REPRIEVE 24th March which calls on the Danish company LUNDBECK not to supply this drug.

Foreign and Commonwealth Office - Guidance on reporting torture etc.

2011-03-25T08:54:00.000Z

The Foreign and Commonwealth Office (FCO) has issued guidance to its staff working overseas about the reporting of torture or mistreatment which they may encounter in the course of their duties. The guidance makes it clear that - "Every member of staff has an individual responsibility to report immediately allegations and/or concerns about suspected torture or cruel, inhuman or degrading treatment or punishment (CIDT) that occurs overseas, so that such allegations and/or concerns can be acted upon appropriately."

The full guidance document may be read via the FCO website.

A relevant and interesting article appeared on the Open Democracy website - "Torture evidence: a secret between Britain and her allies" by human rights activist Aisha Maniar - 28th February 2011. The article draws together a number of threads including the Binyam Mohamed case, the planned Green paper on the use of intelligence material in legal proceedings and the Gibson Inquiry into allegations of British complicity in torture. In 2010 the British government reached a negotiated "without prejudice" settlement with a number of men who had been detained at Guantanamo Bay. Details of the agreement have not been published and the men are subject to a confidentiality clause.

In Memoriam - Halabja - 16th March 1988

2011-03-16T22:34:00.000Z


Halabja Memorial

Never Forget Halabja
As Sulaymānīyah - Iraq

In March 1988 Halabja was subjected to an horrific gas attack which killed some 5000 people and caused severe injury to many more. On 25th January 2010 the man who ordered this attack - Ali Hassan Al Majid (a cousin of Saddam Hussein) - was executed in Baghdad. The full horror is well recorded by the Gallery of Muslim Massacres website. The City of Manchester, in Northern England, has a modest memorial to Halabja 16th March 1988. It is a tree - (pictured) - and a small memorial stone. They are located in a busy part of the city centre. Today, 16th March 2011, a small group of people met there and placed flowers in remembrance of those who had died.

The Halabja massacre took place toward the end of the Iraq-Iran War (September 1980-August 1988). Of course, much was to unfold before the Saddam Hussein regime was finally brought to an end as a result of military action against Iraq. There was the action (under United Nations mandate) to remove Iraqi Forces from Kuwait - (August 1990 to February 1991). Later there was the 2003 military invasion of Iraq by Coalition Forces. This action remains highly controversial and, in the U.K., has been the subject of a number of inquiries the latest of which is the Chilcot Inquiry which has been referred to in several posts on this blog. The coalition action against Iraq raised numerous issues in international law and the justification for military action by the U.K. remains the subject of intense debate. Nevertheless, Halabja is a constant reminder of the abysmal regime headed by Saddam Hussein.

The Responsibility to Protect (UN Security Council Resolution 1674/2006) emerged as one outcome of these and other atrocious events.

An "Inconvenient Atrocity": The Chemical Weapons Attack on the Kurds of Halabja, Iraq

The International Criminal Court and Libya

2011-03-03T21:39:00.004Z

On Thursday 3 March 2011 announced the opening of an investigation in Libya.

United Nations Security Council Resolution 1970 (2011) provides jurisdiction to the International Criminal Court over the situation in Libya since 15 February 2011. As per the Rome Statute, the Prosecutor shall proceed with an investigation unless there is no reasonable basis to believe that crimes falling under the ICC jurisdiction have been committed.

Following a preliminary examination of available information, the Prosecutor reached the conclusion that an investigation is warranted.

The Office of the Prosecutor is liaising with the United Nations, the African Union, the Arab League, as well as States. Additionally, the Prosecutor will also request information from other sources including from Interpol who will provide assistance. The Prosecutor will act independently and impartially.

The next step is for the Prosecutor to present his case to ICC judges who will then decide whether or not to issue arrest warrants based on the evidence.

The EJIL website carries two interesting items: "Has the U.K. de-recognised Colonel Gadhafi as Head of State of Libya" and "The difference between rhetoric and reality: Why an illegitimate regime may still be a government in the eyes of international law." The question of the recognition of States has to be distinguished from recognition of governments. This matter is considered by Stefan Talmon here. See details of Professor Talmon here - University of Oxford.

Addendum - 18th March: On 26th February 2011 the U.N. Security Council passed Resolution 1970 (2011) addressing recent events in Africa. On 17th March, the Security Council - by a vote of 10 to 0 (with 5 abstentions) - passed Resolution 1973 (2011). See U.N. News and also resolution 1973 may be read at The Guardian 18th March.

Is this "torture inquiry" fatally flawed?

2011-02-23T23:22:00.001Z

Back in July 2010 the government announced an inquiry into allegations of British complicity in torture - see Watching the Law. Questions were raised at the time about this inquiry - see REPRIEVE. These concerns have now returned and they are unlikely to go away - see The Guardian 23rd February 2011.

Iraq - Chilcot Inquiry continues

2011-01-19T10:10:00.001Z

In December 2010 the Chilcot Inquiry set out a list of witnesses to be heard in the early part of 2011 - see Watching the Law "Chilcot to take further evidence in early 2011." The list included former Prime Minister Blair. Lord Goldsmith QC - who was Attorney-General at the relevant time was asked to provide further written evidence and it may be read on the website of The Guardian 17th January - Goldmith statement in full.

Goldsmith admits to being "uncomfortable" about the stance Blair was taking having received Goldsmith's initial advice that UN SCR 1441 (November 2002) would not, in itself, justify military action. Despite this advice, Blair informed the House of Commons that there were "circumstances" in which a second resolution was not necessary. Three weeks later, Blair told BBC Newsnight that he would consider action if a UN SC member "unresaonably" vetoed a further resolution. As far as one can tell, this idea of the "unreasonable veto" has no basis in the UN Charter or elsewhere in international law. Eventually, Goldsmith changed his view about the legality of the military action. Goldsmith now claims that he was not sufficiently involved in the meetings and discussions about Resolution 1441 and the policy behind it that were taking place at ministerial level.

Who has said what to the Chilcot Inquiry?

24 November 2009 - Inquiry opens and Chilcot states it will not shy away from criticism when justified

25 November 2009 - Sir William Ehrman said that UK had received information that Saddam Hussein had dismantled his weapons of mass destruction (WMD) before the military action commenced in 2003

26 November 2009 - Sir Christopher Meyer testified that the Blair government never considered opting out of, or opposing, the Bush Presidency plan to invade Iraq

12 January 2010 - Alastair Campbell defended the dossier on Iraq's weapons programme. He also said that Blair had assured Bush that Britain would be there if the US attacked Iraq.

21 January 2010 - Jack Straw said that he had convinced himself "very reluctantly" that backing military action was the correct decision. [Note: Elizabeth Wilmshurst - Foreign Office Legal Adviser resigned having considered that an invasion would not be lawful].

29 January 2010 - Tony Blair confirmed to Chilcot that he had pledged military support at a meeting with President Bush in April 2002. Blair asserted that he had no regrets about the decision to go to war.

5 March 2010 - Gordon Brown (Chancellor of Exchequer in 2003) defended defence funding.    Brown later admitted that defence funding had actually fallen in "real terms" in the 2 years Britain was at war in both Iraq and Afghanistan.

30 July 2010 - John Prescott (former Deputy PM) told Chilcot that at the time he felt that the Joint Intelligence Committee assessments contained conclusions based too much on too little evidence.

A further development relates to communications between Blair and Bush in the cruicial period leading up to the war. Citing national security, Sir Gus O' Donnell (Cabinet Secretary) has refused permission for the contents of these communications to be published - see Sir John Chilcot's opening remarks at the Inquiry session on 18th January 2011.   It may be that this will have the eventual result of devaluing the final report of the inquiry. See also the CharonQC blog.

The Stain of Complicity in Torture:

Writing in The Guardian 18th January, Afua Hirsch (Legal Correspondent) looked at "The Stain of complicity in torture."   The Equality and Human Rights Commission is seeking judicial review of certain "guidance" issued by the British government. In September 2010 the EHRC stated that the guidance might be unlawful.

International Criminal Court Developments

2010-12-28T09:56:00.002Z

On 10 December 2010, the Assembly of States Parties to the Rome Statute of the International Criminal Court (“the Assembly”) concluded its ninth session and adopted resolutions, inter alia, on the programme budget for 2011, permanent premises, governance, the Independent Oversight Mechanism and on Strengthening the International Criminal Court and the Assembly of States Parties.

See ICC - Conclusion of the Assembly's 9th Session

A United Nations webcast is also available - here.

The 9th Session followed the Kampala Review Conference (June 2010) which adopted a resolution relating to the crime of Aggression. At Kampala provisions were adopted governing the terms of the ICC's ability to investigate and prosecute individuals for the crime of aggession. The ICC parties agreed on a jurisdictional regime though procedures depend on how the matter gets to the ICC (e.g. by reference from the UN Security Council, State referral or the prosecutor's own initiative). The Review Conference determined that the activation of jurisdiction is still subject to a positive decision by the ASP which cannot be taken before 1 January 2017 and one year after the ratification or acceptance of the amendments by 30 states parties, whichever is later. Read more on: Crime of Aggression

Kampala Review Conference

Aggression

In Kenya there is concern about the ICC prosecutor having in his "cross-hairs" six Kenyans alleged to have been behind post-election violence - see here. Kenyan MPs are seeking withdrawal from the court. It is permissible for States to withdraw from the court but one year's notice is required and the withdrawal does not affect cases commenced prior to the notice of withdrawal.

Enforced Disappearances

2010-12-28T09:41:00.001Z

On 23rd December 2010 the International Convention for the Protection of All Persons from Enforced Disappearance (Disappearances Convention) came into force after Iraq became the 20th country to ratify it. The Convention aims to establish the truth about enforced disappearances, punish perpetrators and provide reparations to victims and their families.

An enforced disappearance takes place when a person is arrested, detained or abducted by a state or agents acting for the state. The authorities then deny that the person is being held or conceal their whereabouts, placing them outside the protection of the law.

The ramifications of enforced disappearances are severe. Those disappeared are often tortured and subjected to cruel, inhuman and degrading treatment. In many cases, they are secretly killed and their remains are hidden. Family members and those close to the person disappeared are left not knowing what has happened to their loved one, whether they are alive or dead. Entire communities can fracture under pressure as people fear being associated with those targeted.

The United Kingdom is not (yet) a party to this Convention.

Further reading see International Law Professors and Amnesty and International Coalition against enforced disappearances.

Drones - their legality in international law

2010-12-17T18:40:00.004Z

The use of drones to attack targets was mentioned on this blog on 16th February and 18th April.

Mr Philip Alston, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary execution produced a report in May 2010. In October 2010, Chatham House London held a meeting to look at Drones and International Law. See below for Mr Alston's report and for a summary of the Chatham House meeting.

UNGA Report on Extra Judicial Execution

Drones and International Law

Is the Government up to the task it faces? Serious questions: no answers.

2010-12-16T12:12:00.008Z

The General Election of May 2010 produced a "hung Parliament" and the politicians put together a Coalition Government. They have now been in power for 7 months. Naturally, they claim that they are trying to put right the economic mismanagement of the previous Labour administration but serious questions are now beginning to arise as to whether they are going about matters the right way. Here are some of the questions - I don't have the answers but it is perhaps time that we as a nation started to find them:

Health and General Practitioners:

Should funds amounting to £80 billion be handed over to the management of General Practitioners - see Public Finance The Risks of GP Commissioning Just how will the GPs be held accountable for such a huge amount of public money? Will every penny actually be spent on health care? Even the British Medical Association is unhappy with aspects of this plan - see Pulse Today.

Taxation of large business:

Many large British business are now legally based abroad so as to minimise their tax liabilities - should the government not be taking this a great deal more seriously? Are UK tax rates too high if businesses feel the need to be "relocating." See Daily Mail - "The Great Tax Heist" - 16th December - "While the Coalition Government is forced to slash spending on public services - not to mention raising the ceiling on student tuition fees - private companises contrive to cut the tax they hand to the Exchequer." [Note: The word "avoidance" is to be avoided since minimising one's tax liability is lawful].

University Funding:

University tuition fees will rise from 1st September 2012. It is argued that this will wreck the chances of University education for many from less financially well-off backgrounds. The rules about fees are particularly unfair in that the same rules do not apply across the U.K. and it is the English student who ends up paying by far the most. At present, the government appears unwilling to even begin to address this regional inequity. The legislation dealing with student fees is the Higher Education Act 2004 and Regulations made thereunder. MPs voted on the Draft Higher Education (Higher Amount)(England) Regulations 2010. The sponsor of the draft regulations is the Department for Business, Innovation and Skills and see their webpage dealing with Student Finance.

It is cliamed by some lawyers that the increased fees may be in breach of fuman rights law - see The Guardian 16th December for this view. Mr Phil Shiner of Public Interest Lawyers is quoted as saying - "It is blindingly obvious that using so-called financial crisis as a guise, this government has set out to permanently change higher education to one based on elitism. It is inconceivable that students from ordinary backgrounds could afford to take on such debts."

Defence and the enormous waste of money:

The Strategic Defence Review produced a Royal Navy without an operational aircraft carrier and now the Harrier "jump jet" has been phased out of service - see BBC News. The uniquely British Harrier gave magnificent service and large sums of public money were spent on it recently. See Think Defence. The Harrier decision seems to be particularly problematic given the aircraft's ability to operate from any land area giving U.K. Forces a very special capability which is now lost. The Public Accounts Committee has issued a report "Managing the Defence Budget" which is highly critical. Here are the opening words: "

"The Ministry of Defence (the Department) is responsible for over £42 billion of annual expenditure. While it has managed to stay within budget each year, it has failed to exercise the robust financial management necessary to control its resources effectively in the long term. It has also failed to match its future plans to a realistic assessment of the resources available. There is a shortfall in planned expenditure against likely funding of up to £36 billion over the next ten years. The Strategic Defence and Security Review did not explicitly set out how this long-standing gap between defence spending and funding would be resolved. It is imperative that the Department should now do so."

... and whilst we are still thinking about the sea, the government has announced that the number of Coastguard Stations is to be cut from 18 to just 3. The Independent 16th December. This smacks of a government which knows the price of everything and the value of nothing.

Overseas Aid:

Just why is Overseas Aid being protected by the government - which continues to borrow - whilst almost everything at home is being slashed to the bone? See Daily Mail 18th September. Even if one accepts that the UK should maintain a certain level of such spending, there are other questions about the management and application of the money.

Access to justice:

Meanwhile, access to justice is likely to be severely limited by further drastic cuts to legal aid. The government appears to be gambling with public safety by preferring rehabiltative sentences to imprisonment. Questions remain about the resourcing of alternatives to imprisonment though Ministry of Justice proposals refer to paying new (probably private enterprise) providers of programmes by results. Essential public services such as Policing are also facing very serious financial constraints and job cuts whilst the government pursues an expensive idea of introducing elected Police Commissioners.

MPs and their expenses:

Will the sorry saga of MPs and their expenses every be settled? It continues to fester - see BBC News.

Public Sector Jobs:

Huge cuts in the public sector workforce are to take place - The Guardian 16th December. without there being a private sector strong enough to absorb them. This seems to be the result of brutal cutting philsophy of the government whereas some urged a more managed approach to reductions.

On this December day, there is a strong cold northerly (arctic) wind and further snowfalls are forecast. It is indeed a Bleak Midwinter and many are seriously questioning the ability of this government to act fairly and sensibly in what is undoubtedly a serious situation. Many of the decisions are taken by very wealthy Ministers and are creating social problems which may lead to further civil unrest. Then there is the decision to raise VAT to 20% from early January. Many are seeing this as the death-knell or coup de grace for many already struggling smaller businesses. This comes on top of some serious inflation which has occurred over the autumn. This leads to the most serious question of all - "Is the Government actually up to the task?" If the answer to that is NO then should they be trying to pass an essentially self-serving Act which will lock them into a Fixed Term Parliament with the next election being held in 2015.

"A Hung Parliament will be Bad for Britain" - well it was Mr Cameron who said it - BBC News 4th April.

Chilcot to take further evidence in early 2011

2010-12-08T18:15:00.001Z

It appears that the Chilcot Inquiry will be recalling former Prime Minister Blair and certain others. The Guardian 8th December 2010. See the Inquiry's Press Release of 8th December which indicates that further evidence will be taken in the period 18th January 2011 to 4th February 2011.

Name	Relevant Role
The Rt Hon. Tony Blair	Prime Minister, 1997 – 2007
Admiral the Lord Boyce GCB OBE DL	Chief of the Defence Staff 2001-2003
John Buck	Director for Iraq 2003-2004
Tom McKane	Deputy Head of Defence and Overseas Secretariat, 2001-2002
Sir Gus O’Donnell, KCB	Cabinet Secretary and Head of the Home Civil Service, 2005 to date
Stephen Pattison	Head of UN Department, 2001-2003 and Director for International Security 2004 – 2007
Sir David Richmond KBE CMG	Deputy UK Special Representative to Iraq, 2003-04; UK Special Representative to Iraq, 2004; and Director General Defence and Intelligence, FCO, 2004-06
The Rt Hon. Jack Straw MP	Secretary of State for Foreign and Commonwealth Affairs, 2001 – 2006
Air Chief Marshal Sir Glenn Torpy GCB CBE DSO	UK’s Air Component Commander for Op Telic One 2003; Chief of Joint Operations (CJO) 2004 – 2006, Chief of the Air Staff 2006-2009
Lord Turnbull of Enfield GCB	Cabinet Secretary and Head of the Home Civil Service, 2002 – 2005
Sir Stephen Wall GCMG LVO	Prime Minister’s Adviser on European Issues and Head of the Cabinet Office’s European Secretariat, 2000 – 2004
Lord Wilson of Dinton GCB	Cabinet Secretary and Head of the Home Civil Service, 1998 – 2002

These hearings will be open to the general public.

The Inquiry has also requested written evidence from the following individuals:

Name	Relevant Role
Lord Bach of Lutterworth	Minister for Defence Procurement, June 2001 – May 2005
Air Chief Marshal Sir Anthony Bagnall GBE, KCB	Vice Chief of the Defence Staff, 2001 - 2005
The Rt Hon. The Lord Drayson	Minister of State for Defence Equipment and Support, 2005 - 2007
The Rt Hon. The Lord Goldsmith	Attorney General, 2001 - 2007
Dr Brian Jones	Head of the Nuclear, Biological, Chemical Technical Intelligence Branch, Defence Intelligence Staff 1987-2003
Major General Albert Whitley	Senior British Land Adviser to Coalition Forces and Land Component Commander, 2002 - 2003

Chilcot Inquiry to publish submissions

2010-11-07T20:21:00.005Z

The blog of the European Journal of International Law (EJIL) informs that the Iraq Inquiry will publish some 35 submissions on international law. Here is the item. The submissions are to be included in the final report. These will be of considerable interest but this inquiry is not a court and cannot give an authoritative opinion on any matter of law whether international or domestic. The inquiry has revealed some interesting information but, no matter how interesting the submissions are, those seeking a statement that Lord Goldsmith's opinion was wrong are likely to be disappointed. Also, at the end of the day, those British politicians who held office at the time will always be able to refer to the advice given by the Attorney-General.

None of this is to say that Chilcot will be unimportant. There will be many findings of a non-legal nature.

Please see the earlier posts on this blog relating to the Chilcot Inquiry and, in particular, here.

The whole business of Britain's involvement in Iraq is not going away much as perhaps the new Coalition government might wish to see the back of these "legacy" issues.

The government has released the post mortem and toxicology reports relating to the death of Dr David Kelly - see Ministry of Justice. The Hutton Inquiry concluded that Kelly committed suicide. Subsequently, the Coroner closed the inquest on the basis that Hutton had done all that was needed.

There is also a developing case before the High Court in which some 222 Iraqis allege systemic abuse by British Forces when they were captives - see here.

Addendum 15th November: See The Guardian 14th November which reported the views of Professor Philippe Sands about the Chilcot Inquiry.

Addendum 1st December 2010: The Wikileaks story broke at the end of November when the contents of thousands of U.S. diplomatic messages got into the public domain. See The Guardian. It appears that the U.K. government gave assurances to the U.S. that American interests would be protected during the Chilcot Inquiry - here.

Iraq: the War Logs

2010-10-23T19:23:00.005+01:00

On 19th August 2010, the last US "combat brigade" withdrew from Iraq though about 50,000 US troops remain in the country in what is described as "an advisory capacity." According to the US, they will help to train Iraqi forces in a new mission - "Operation New Dawn" - which will run until the end of 2011. The mission that ended on 19th August 2010 was known as "Operation Iraqi Freedom," and cost more than $900 billion and saw 4,415 US troops die. 100,000 Iraqi civilians were estimated to be killed, according to the Iraq Body Count website.

Following the withdrawal, there seemed to be a political vacuum which may have enabled Iran to broker a deal which could see a pro-Iran government installed in Iraq. The Guardian 17th October 2010.

The latest major story is the leak of numerous documents which raise major concerns about the behaviour of coalition forces in Iraq. The Guardian 23rd October - "Iraq, the war logs." It appears that United Nations officials are calling on President Obama to investigate the allegations - The Guardian 23rd October.

Meanwhile, back in the USA - Obama is fighting mid-term elections. Viewed from the UK, despite hopeful beginnings in 2008, his administration does not appear to have proved all that popular with many Americans and he has demonstrated a certain hostility toward Britain over the Deep Horizon oil incident when he appeared to lay the blame entirely at the door of BP. It seems likely that the Republican Party will make gains in the mid-term elections and this will further weaken Obama's position. All seats in the House of Representatives; one-third of the Senate and 36 State Governorships are on the line. The ruling Democrats are likely to lose Senate seats and perhaps control of the House of Representatives.

The growth of so-called "Tea Party" candidates is also interesting. These people are pushing for lower taxes, lower government spending, cutting the deficit and "smaller" government. Ordinary Americans are fearful for the future: threatened with unemployment. Retired people are receiving almost nothing on their savings and that has resonance in the UK. Nevetheless, Americans continue to consume some 400 million gallons of gasoline daily and at prices which, in the UK, would amount to about 40p litre. Typical UK price is £1.18 litre with further rises on-going and VAT increasing to 20p in January 2011. If ever there was a way to plunge the U.K. into further recession this is it.

Nevertheless, despite the massive economic mess, it would be ironic if the USA returns to the Republican Party which, in the Presidency of G.W. Bush, embroiled that great nation in the Iraq War and which led to western governments forgetting the fundamental values which they are supposed to stand for.

See also "Frago 242 - a licence to torture"

Why the US has truned against Obama - Telegraph 25th October

Addendum 26th October: It appears that the Chilcot Inquiry may be recalling former Prime Minister Blair to give further evidence - Guardian 26th October. When called previously, he was allowed to make "speeches" including warning of the threat posed by Iran which was not germane to the Inquiry's remit. This demonstrated that Chilcot probably needed a skilled lawyer as counsel to conduct the examination of witnesses.

Further revelations about alleged British interrogation methods have also been revealed - Guardian 26th October.

The Strategic Defence and Security Review and Spending Review

2010-10-19T20:38:00.006+01:00

The government has announced details of the Strategic Defence and Security Review in which it has been engaged since taking office. The 75 page document may be read here. This is an important review which will, when implemented, make far reaching changes to Britain's Armed Forces and also to the management of U.K. security in the wider sense. The outcome of the review is also likely to affect Britain's wider influence in international affairs generally.

The government's spending review (announced Wednesday 20th October) may be read at H.M. Treasury. The Guardian published their summary of it.

The Defence Review makes it clear that Britain will maintain a military presence in Gibraltar, Cyprus, the South Atlantic (including the Falkland Islands) and Diego Garcia. It is planned to remove British Forces from Germany by 2020.

Addendum 3rd December: HMS Ark Royal sails home for the last time.

The Fighting Temeraire - JMW Turner (1775-1851)

A brave rescue attempt which, sadly, went wrong.

2010-10-12T14:44:00.005+01:00

There should be no doubt that the attempt to rescue Linda Norgrove was the right and proper thing to do. No government worthy of the name should abandon its citizens to their captors. Lessons will be learned but the U.K. and U.S. authorities should not blame themselves for trying. See The Guardian 12th October.

The Guardian 29th October reported that Linda Norgrove's parents refused to blame the Americans.

See Statement in Parliament by William Hague - Foreign Secretary - 2nd December 2010.

Philippe Sands QC makes a submission to Chilcot

2010-10-05T10:08:00.001+01:00

Barrister and Law Professor Philippe Sands QC has made a submission to the Chilcot Inquiry - it may be read via The Guardian 5th October 2010.

Addendum 14th October: A further submission by Alexander Orakhelashvili (University of Birmingham) may be read at The Guardian 14th October.

Virginia executed Teresa Lewis

2010-09-24T10:49:00.004+01:00

The U.S. state of Viriginia has executed Teresa Lewis - Telegraph 24th September 2010. As mentioned in the post below, it beggars belief that any supposedly civilised society can be wedded to the death penalty and yet many of the individual U.S. States continue to be. For instance, since 1976, Texas has carried out 463 executions and Virginia 107. Information about the death penalty in the USA may be read at - Death Penalty Information Centre.

Even adherents to the death penalty ought to recognise the fundamental unfairness in executing Lewis when the men involved received life imprisonment sentences. The difference is explained by the view that Lewis was the mastermind or, as the sentencing judge put it, "the head of the serpent". A further serious concern related to her mental state. Most reports indicate that she had an IQ of 72. Below 70 appears to amount to "mental retardation" and the execution of a mentally retarded person would be unconstitutional - (a "cruel and unusual punishment" in breach of the 8th amendment) - see Atkins v Virginia 536 US 304 (2002). There is actually no definite method of measuring human intelligence and the use of IQ is very problematic - see, for example, here. Even if one accepted IQ as a measurement, it is not possible to measure it with such precision that it ought to be used as a test determining issues of life or death.

The execution of Lewis does no credit to the law in Virginia or the USA. At a fundamental level, the execution will not have made Virginia a better place and will not prevent future murders.

Since 1976, the USA has executed 1214 men and 12 women. Murder continues to be committed.

Writing in The Washington Post 12th September, the lawyer and author John Grisham analysed the Lewis case. He wrote - "In this case, as in so many capital cases, the imposition of a death sentence had little do with fairness. Like other death sentences, it depended more upon the assignment of judge and prosecutor, the location of the crime, the quality of the defense counsel, the speed with which a co-defendant struck a deal, the quality of each side's experts and other such factors.

In Virginia, the law is hardly consistent. There have been other cases with similar facts -- a wife and her lover scheme to kill her husband for his money or for life insurance proceeds. But there is no precedent for the wife being sentenced to death. Such inconsistencies mock the idea that ours is a system grounded in equality before the law"

Further links:

Death Penalty Information Centre

U.K. based United States Death Penalty Training courses.

The work of AMICUS to assist lawyers working on U.S. death penalty cases is vital. Their website merits a good look and their work merits support.

Law and Lawyers - the Linda Carty case.

It beggars belief ... practices which ought to be ended ...

2010-09-20T13:25:00.006+01:00

The Death Penalty

It beggars belief that a supposedly civilised nation such as the United States of America still continues in many of its States to cling to the death penalty.

Robert McDonnell (Governor of Virginia) has refused a reprieve for Teresa Lewis who is likely to die by lethal injection on Thursday 23rd September. See The Guardian 19th September 2010. Virginia has not executed a woman since 1912. An appeal to the U.S. Supreme Court remains Lewis's only possibility of surviving. Even though Lewis stands convicted of a very serious crime (conspiracy to murder) it is notable that the men who actually carried out the killings in pursuance of the agreement with Lewis received life sentences. One of them confessed in order to avoid the death penalty but Lewis also pleaded guilty.

Here is the statement of Governor McDonnell.

Addendum 23rd September - The Supreme Court of the United States refused Lewis's application for a stay of the execution though two of the justices would have allowed it - see here. See also New York Times 21st September 2010 and Amnesty International

Deportation with Assurances

It also beggars belief that a nation such as the United Kingdom is continuing to actively pursue so-called Memoranda of Understanding so that individuals can be deported to various States which have absymal human rights records including the use of torture. See The Guardian 17th September 2010. It also appears, from a debate in Parliament on 5th July 2010 that the British government is negotiating further memoranda. This is an absymal practice which ought to stop immediately since it only lends encouragement to the hideous practice of torture.

For the debate see Hansard 5th July 2010 column 74W - here - question by Mr Dominic Raab MP (for Esher and Walton) to the Immigration Minister Mr Damian Green MP (for Ashford).

Mr Raab: To ask the Secretary of State for the Home Department (1) with which countries the UK has a memorandum of understanding to facilitate the return of foreign nationals without the risk of torture or other inhuman and degrading treatment;

(2) with which countries the Government is negotiating with a view to signing a memorandum of understanding to facilitate the return of foreign nationals without the risk of torture or other inhuman or degrading treatment.

Damian Green: The UK has signed Memoranda of Understanding with Ethiopia, Jordan, Lebanon and Libya which set out in general terms the manner in which an individual deported to or from the UK and one of those countries under the terms of those Memoranda will be treated. Similar arrangements, which were set out in an exchange of letters between the then Prime Minister and the President of Algeria in July 2006, apply in respect of deportations from the UK to that country.

The texts of these Memoranda and of the exchange of letters are available on the Foreign and Commonwealth Office's website:

http://www.fco.gov.uk/en/global-issues/counter-terrorism/targetting-terrorism

We have made it clear that we intend to extend the practice of seeking assurances to more countries, but it would not be appropriate to identify the countries concerned until negotiations have been successfully concluded.

For the serious student, there is an interesting and critical article in the Cambridge Student Law Review Volume 6 No.1 (2010) at page 226 - "The SIAC, Deportation and European Law"

Chilcot Inquiry criticised over civilian casualties

2010-08-28T08:35:00.002+01:00

It is almost certainly true to say that nobody actually knows how many Iraqi civilian deaths were caused as a result of the military action in Iraq. The Chilcot Inquiry has been accused of paying derisory attention to this issue - see The Guardian 27th August 2010. See also the Guardian's page on Iraq. There appears to be nothing in the Inquiry's terms of reference which would prevent them from examining this matter though the inquiry is concerned primarily with the period Summer 2001 to the end of July 2009 - see here.

The Chilcot Inquiry has now finished hearing evidence. 140 witnesses have been heard and this has concentrated mainly on the decision-making in London and Washington. The Inquiry team are to visit Iraq so it is possible that their eventual report may contain something about the Iraqi perspective.

The U.S. has now scaled down its troop numbers in Iraq to about 50,000 who, according to BBC Middle East News 19th August 2010, are there to "advise Iraqi forces and protect US interests". The same report notes that the US has a trillion dollar investment in Iraq to protect.

Some reports of very recent events in Iraq may be read at Iraqi Coalition Casualty Count (icasualties.org) and at Iraq Today. It is clear that Iraq is far from being a settled place and it is reported that there have been Al Qaeda attacks across 13 cities and towns - see New Zealand Herald 27th August 2010. This casts considerable doubt about Iraqi government claims that security has improved.

See also Operation Iraqi Freedom

War criminals serving their sentences in Britain

2010-08-14T14:36:00.003+01:00

It is possible for certain convicted war criminals to serve their sentences in the U.K. and, sometimes, the prisoner will have had no particular prior connection with the U.K. The Manchester Evening News 13th August 2010 reported the outcome of a case concerning Radislav Krstić see "Serbian War Criminal wins legal battle in Manchester Court". The case in Manchester was a challenge to Krstić's status as a Category A prisoner and a decision to continue that status was quashed.

In 2004, Krstić was convicted (on appeal) by the International Criminal Tribunal for Former Yugoslavia (ICTY) of aiding and abetting genocide and was sentenced to 35 years imprisonment which he is currently serving in England. He held high rank in the Serbian military and played a leading role in Krivaja 95. The ICTY website carries details of the case against Krstić and demonstrates the considerable care which the Tribunal took to ensure due process - see here.

The ICTY was set up in 1993 and is the first war crimes tribunal to have been created by the United Nations and the first international war crimes tribunal since Nuremberg and Tokyo. It was established under the United Nations Charter Article VII. Most of the cases before the ICTY have concerned crimes alleged against Serbs and Bosnian Serbs but the tribunal has also dealt with cases against Croats, Bosnian Muslimes and Kosovo Albanians for crimes against Serbs and others. The United Nations has recently extended the life of the tribunal to the end of 2012. Some 37 cases remain on going including that of Radovan Karadžić.

International criminal justice would not be achievable without countries being willing to hold those convicted in prison. The agreement with the U.K. may be seen here. Similar agreements exist with a number of other countries. Over the coming years there will be on-going issues about the status of such prisoners, the security risks involved and eventually questions about parole/early release. Krstić was attacked in Wakefield Prison earlier this year - see Telegraph 8th May.

On the subject of International Criminal Tribunals - there is a challenging book "Fact finding without facts" which considers just how various international tribunals have dealt with this crucial aspect of trials - see Opinio Juris.

See Garden Court Chambers for a report on the Krstić case in Manchester.
Case report - Krstić v Secretary of State for Justice [2010] EWHC 2125 (Admin)

Special Court for Sierra Leone: Prosecution of Charles Taylor

2010-08-12T12:42:00.001+01:00

The so-called "super model" Naomi Campbell gave evidence at the trial in the Special Court for Sierra Leone of Charles Taylor - see The Guardian 5th August 2010. The court was set up following UN Security Council Resolution 1315 (2000). According to the court's statute , it has power "to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30th November 1996 ..."

See Prosecutor v Charles Taylor where it is explained why the case against Taylor is being heard at The Hague.

Proceedings may be followed via the court's website.
Further material on international humanitarian law.

Addendum 15th August: Naomi Campbell given protection - The Guardian

The killing fields of Cambodia - "justice" at last ?

2010-07-28T10:28:00.005+01:00

Appalling cruelty from one individual to his fellow men seems to be endemic in the human race. This was never more so than in Cambodia (formerly Kampuchea) under the Khmer Rouge regime of the 1970s.

From 1975 to 1979 the S-21 Security Centre operated in Cambodia. Over 12,000 people were ruthlessly killed by the Khmer Rouge regime. The leader of S-21, an appalling individual called Kaing Guek Eav (alias Duch), has been sentenced to 35 years imprisonment for his prominent role in these atrocities which amounted to crimes against humanity and grave breaches of the Geneva Conventions 1949. See The Guardian 25th July 2010.

He was sentenced by the "Extraordinary Chamber in the Courts of Cambodia" which is a national court but United Nations appointed judges and prosecutors were used.

In passing the sentence, the court found that there was mitigation: co-operation with the Chamber; admission of responsibility; limited expressions of remorse and the coercive atmosphere in the country at the time and potential for rehabilitation. The informed reader may well doubt some of those and, even if they are accepted, the reader may well feel that the immense seriousness of his criminality merited nothing less than the remainder of his life in prison. It is little wonder that the few known survivors are unhappy with the outcome - see BBC "Tears and Disbelief at his sentence". The court's statement may be read on their website - see here.

It is reported that Duch will appeal against his sentence - BBC 28th July. This may be his right but it hardly shows a jot of remorse.

Addendum 30th July: A film "Enemies of the People" deals with aspects of the Khmer Rouge regime in Kampuchea. The film is co-directed by Thet Sambath. An interesting and rather moving article appeared in The Guardian 27th July and see also New York Times 29th July. Thet Sambath's views about justice not being vindictive are very powerful. In Cambodia there is a museum at Tuol Seng dedicated to the genocide which took place.

Addendum 28th March 2011: The appeal by Eav against his sentence has commenced. In a heavily criticised move, it has already been commuted to 19 years imprisonment - The Guardian 28th March 2011.

Kosovo

2010-07-23T12:42:00.002+01:00

The International Court of Justice (ICJ) has issued an Advisory Opinion relating to Kosovo which declared independence from Serbia on 17th February 2008. Here is a link to the opinion which is to the effect that the declaration of independence did not violate international law. This is far from being a ruling that Kosovo is an independent State - see here for the views of international law expert Professor Paolo Gaeta

The U.K. maintains an Embassy in Kosovo and William Hague (Foreign Secretary) has commented on the ICJ ruling. Hague said - "The UK holds firm in its conviction that Kosovo's status as a State and with its territory defined by its existing borders is a positive force for stability in the Western Balkans. I urge both Kosovo and Serbia to embrace this opportunity to reconcile and to become good neighbours."

The EULEX KOSOVO website is an interesting source of information.

See also "The World Court's Non-Opinion" - article on Opinio Juris

Chilcot: Former Director of MI5 said that Iraq "radicalised" Muslims

2010-07-20T18:08:00.001+01:00

In evidence to the Chilcot Inquiry, the former Director of MI5 (Dame Eliza Manningham-Buller) said that the Iraq War "radicalised" Muslims. See The Guardian 20th July and analysis of her evidence by Richard Norton-Taylor - The Guardian 20th July. To be frank, most ordinary people will probably find this entirely unsurprising. The U.K. has a considerable Muslim population and their feelings appeared to count for little in the eyes of the Blair government when it decided to join the USA in the Iraq occupation.

Further on this story - The Independent 21st July 2010 - which argues that Manningham-Buller has "destroyed" Blair's argument that the Iraq War would make the world safer.

So-called "Detainee Legacy Issues" ...

2010-07-15T08:28:00.002+01:00

The Guardian 15th July 2010 reports on documents made public in a High Court case brought by certain former detainees at Guantanamo Bay, Cuba. Key passages from the documents may be seen on the Guardian's website - here. The Guardian's report states:

"The true extent of the Labour government's involvement in the illegal abduction and torture of its own citizens after the al-Qaida attacks of September 2001 has been spelled out in stark detail with the disclosure during high court proceedings of a mass of highly classified documents.

Previously secret papers that have been disclosed include a number implicating Tony Blair's office in many of the events that are to be the subject of the judicial inquiry that David Cameron announced last week.

Among the most damning documents are a series of interrogation reports from MI5 officers that betray their disregard for the suffering of a British resident whom they were questioning at a US airbase in Afghanistan. The documents also show that the officers were content to see the mistreatment continue."

The present government clearly wishes that this litigation would come to an end and that the cases are settled by mediation. An inquiry has been announced (see here) to be chaired by Sir Peter Gibson (a former Lord Justice of Appeal). The government appears to refer to these cases as "detainee legacy issues". Of course, the cases are one aspect of the appalling mess left behind by the Labour Government but it is the United Kingdom (as a State) which will have to bear any eventual responsibility and it is the U.K. which is a signatory to the international Convention on Torture.

The UK Human Rights Blog (prepared by barristers at 1 Crown Office Row) covers this story.

The possible involvement of Jack Straw and Downing Street in the rendition to Guantanamo of Martin Mubanga is also of concern - see here.

There is now more than adequate material to say that the former Labour government has definitely got a "case to answer" and it is high time that the public heard the truth instead of government always hiding behind the mantra of national security. In the aftermath of "9/11" some western politicians appear to have forgotten just what our traditional values are.

Her Majesty addressed the United Nations General Assembly

2010-07-10T17:46:00.001+01:00

Her Majesty The Queen addressed the U.N. General Assembly on 6th July 2010. Her visit may be viewed on the Monarchy website. His Excellency the Secretary-General of the U.N. referred to her as a symbol of "grace, constancy and dignity". Of that there is no doubt. See Ban Ki Moon's comments.

Complicity in Torture - Inquiry announced by UK government

2010-07-09T11:40:00.010+01:00

On 6th July, the Prime Minister (David Cameron) announced that there would be an inquiry into the question of British complicity in torture conducted abroad - BBC 6th July. The Guardian 6th July also reported on this important development - Guardian 6th July. There has been serious concern over a number of years about whether Britain has been in some way complicit in either torture or in extraordinary rendition. For example, Binyam Mohamed claimed that British agents put questions (via the CIA) to his interrogators. The previous government failed to deal adequately with these allegations and there is little doubt that this has done damage to Britain's standing in world opinion.

This inquiry is to be led by former appeal court judge Sir Peter Gibson who is now the Intelligence Services Commissioner. Therein lies what is perhaps the first criticism of the inquiry. As the civil rights body Liberty put it - "his continuing role as Intelligence Services Commissioner since 2006 ... will hardly give torture victims and the wider public the sense of a fresh pair of eyes on a sore that has festered in the shadows for so long". He is to be assisted by Dame Janet Paraskeva (Civil Service Commissioner) and Peter Riddell (a former journalist).

No prosecutions can result since witnesses will be granted indemnity. (Note: This was also done in relation to the Bloody Sunday Inquiry in Northern Ireland). Interestingly, it is now some 18 months since the Attorney-General of the day was reported to be considering ordering an investigation into allegations that British agents fed questions, via the CIA, to those interrogating Binyam Mohamed - see Telegraph February 2009.

Cogent criticisms of the inquiry are set out by REPRIEVE. Against a background of such criticism it is to be doubted that the inquiry will convince right-thinking public opinion. However, the announcement of the inquiry is welcome. It is charged with reporting by the end of this year.

With regard to publishing the inquiry findings, it is worth noting that Sir Peter Gibson conducted a review in connection with Intelligence and the Omagh Bombings in 1998 - see Northern Ireland Office. His key findings were put in the public domain.

See UK Human Rights Blog - for a very good article covering in full David Cameron's statement
See also Watching the Law - May 2010.

Addendum: 20th July 2010 - the human rights organisation "REPRIEVE" is calling for Sir Peter Gibson to stand down from this inquiry. They have a point.

Addendum: 29th July 2010 - the government has rejected the accusation that Sir Peter Gibson might be compromised in conducting the inquiry - see The Guardian 29th July. They see the attack by REPRIEVE as "unwarranted and baseless". They add that, since he is not sitting as a judge conducting litigation or a statutory inquiry, there is no legal obligation to satisfy the tests of impartiality and independence which would apply in those situations. I still think that REPRIEVE have a point but there it is.

Foreign Affairs and the new government: No.3

2010-07-02T10:16:00.003+01:00

The Foreign Secretary (William Hague) has set out the foreign policy approach which the new British government will adopt. See Foreign and Commonwealth Office 2nd July 2010. The speech received a detailed look by The Independent 2nd July 2010. Hague referred to the U.K. maintaining its relationship with the U.S.A. but it would be a "solid not slavish" relationship. There will be greater emphasis on the European Union and the government would seek to increase Britain's influence by increasing the number of officials working for the E.U. (The U.K. is 12% of the E.U. population - which now comprises 27 nations - but has 1.8% of the staff). There would also be increased diplomacy with India, China, Brazil and Latin American nations. Of course, those are the growing economies of the world and good relationships with them will be vital in the decades ahead. However, as the Independent article notes, the U.K. cannot enter into international trade arrangements on its own but acts via the E.U. Given the current economic climate in the U.K. it is difficult to see where the resources will come from in order to increase diplomacy but, in many ways, the U.K. cannot afford not to do so.

How Goldsmith changed advice on the legality of war

2010-07-01T09:06:00.003+01:00

The Independent 1st July 2010 published an article showing the steps through which Lord Goldsmith QC came to his final advice about the legality of the Iraq War. This topic is discussed in greater detail in the post below.

Meanwhile, the events surrounding Iraq continue to produce points of controversy - e.g. the Dr Kelly Inquiry is in the news again - see Daily Mail 1st July. The Supreme Court of the U.K. has reversed the Court of Appeal in a case concerning the death of a soldier in Iraq - see The Guardian 1st July. The Guardian 1st July also comments about the Iraq Inquiry and Goldsmith's advice, pointing out that the Iraq Inquiry is all about the political context in which Goldsmith operated. Yet another article covers the refusal of the British Ministry of Defence to hold an inquiry into certain Iraqi civilian deaths which occurred when the detainees were under British control - see here.

Meanwhile, former Prime Minister Tony Blair, continues to collect honours in recognition of his work for "liberty", the latest being the Liberty Medal awarded by the U.S. National Constitution Centre - see Telegraph 1st July. Blair was, along with U.S. President George W. Bush, one of the architects of the military action in Iraq from 2003.

Was the Iraq War Lawful? Chilcot Inquiry to consult international lawyers

2010-06-30T17:45:00.003+01:00

The Iraq Inquiry has resumed its hearings in London. Interestingly, Sir John Chilcot (the Inquiry Chairman) informed the inquiry that an open invitation had been issued to international lawyers to comment on the grounds relied on by the British government in undertaking military action in Iraq. The Inquiry has also approached the British Institute for International and Comparative Law and the Oxford University Public International Law Discussion Group.

Those views, if eventually published, will be of considerable interest. However, this Inquiry is not a court and will not be able to make an authoritative ruling on the still hotly disputed question of legality.

On 7th March 2003, the Attorney-General (Lord Goldsmith QC) offered the British government a carefully phrased opinion that the "safest legal course" would be to obtain a UNSCR authorising the use of force (Para. 27 of the opinion) - [read the opinion]. The Attorney went on to state (para 28) that "a reasonable case" could be made that Resolution 1441 was capable of reviving the authorisation in Resolution 678 without a further resolution. {The Attorney's opinion did not deal with argument that UNSCR 678 was redundant after UNSCR 687 was passed in April 1991. If 678 was redundant then there was nothing for 1441 to revive}.

See UNSCR 1441 and UNSCR 678 and UNSCR 687

It was plain that the British Chief of the Defence Staff wanted a stronger statement that military action would be lawful and this was requested on 10th March. On 17th March, the Attorney spoke in the House of Lords and had reached the conclusion that "the better view" was that there was a lawful basis without a further resolution - see National Archives A.G. Opinion 17th March and also see Hansard.

The Inquiry heard Lord Goldsmith's evidence on 27th January 2010 and, the previous day, heard from Sir Michael Wood (Legal Adviser, Foreign Office, 2001-6 and Elizabeth Wilmshurst (Deputy Legal Adviser, Foreign Office, 2001-3) - see here. Wilmshurst resigned her post at the Foreign Office since it was her opinion that the war would be unlawful.

A detailed study of this question is to be found in the book "The Iraq War and International Law" - (Eds. Phil Shiner and Andrew Williams - Hart Publishing, 2008.) Having retired as senior "law lord", Lord Bingham of Cornhill gave the annual Grotius Lecture at the British Institute of International and Comparative Law. That was on 17th November 2008 and he considered that the invasion of Iraq was a serious violation of international law - see here.

Whether the Attorney was right is one question but it is worth noting that the Attorney is the senior legal adviser to the British government. Ultimately, it is his view that determines the actions of the government.

Regrettably, there seems to be no evidence of the British government consulting with eminent and independent international lawyers back in 2003. It is somewhat ironic that the Chicot Inquiry is now doing precisely that as part of its ex post facto analysis of these immense events which resulted in the deaths of many thousands and which may have destabilised the structure set up by the United Nations Charter to regulate the use of force. [30th June 2010].

Deep Horizon: the blame must be shared.

2010-06-13T13:28:00.007+01:00

Back in February 2010, Watching the Law took a look at The Falkland Islands and what, from the public perception in the UK, looked like American support for Argentina in its claim that it has sovereignty over those islands. Underlying this stance (and probably much of American foreign policy) appears to be the insatiable demand in the USA for oil and comparatively cheap fuel - petrol is currently retailing on American forecourts at around 2.75 to 3 dollars per gallon. The USA uses over 400 million gallons of petrol per day.

In his First State of the Union Address, Barack Obama referred to the need to open new offshore areas for oil and gas development. This strategy is also aimed at reducing America's dependence on imported oil. To that end, some 167 million acres of ocean along the Atlantic coast together with areas in the Gulf of Mexico and areas to the north of Alaska were to be the subject of drilling concessions. This Environmental blog appears to cover this strategy very well. Much of the plan was opposed by environmentalists - see The Guardian 31st March 2010 and The Daily Mail 31st March 2010.

Drilling in deep water is a difficult, highly technical and risk-ridden enterprise. BP is one company which engages in this work and its operations necessarily use many sub-contractors. Following the Deep Horizon oil rig explosion on 20th April 2010, President Obama has engaged in massively damaging rhetoric against BP. This was clearly aimed at Obama trying to maintain political credibility in the USA. and to divert attention from any role played by his own administration.

It is relevant to ask whether, amongst others, the USA government properly addressed the risks involved in drilling of this type. In a balanced article, The Independent 13th June 2010, concludes that they are far from free of blame. This must be correct and, as in many things, the legal blame should fall across several bodies involved such as the US Department of the Interior. More can be read at Institute for Catastrophic Risk Management

See the BP website for further information about Deep Horizon. Meanwhile, Obama has returned to a moratorium on further drilling - The Guardian 28th May. How long that will last is a moot point but it seems likely that it will end sooner rather than later and that politicians will be at pains to inform the public that the risks have been addressed and are now manageable.

Links:

See US Congress - House of Representatives Committee on Energy and Commerce 10th May. Much of the detail of what occurred can be read in this document.

See White House - discussion between President Obama and Prime Minister Cameron.

Guardian - "Deepwater Horizon Oil Spill" - access to articles etc. relating to Deep Horizon.

Addendum: - 16th June 2010: Obama addressed the USA on the crisis and vowed to make BP pay for it - see Telegraph 16th June.

Addendum - 17th June 2010: BP Executives met with Obama on 16th June and BP agreed to put money into a fund. Dividends will not be paid to shareholders this year - see The Guardian. The Telegraph looked at how BP attempted to spread blame for this event. The Daily Mail took a look at the many companies actually involved including the American Giant Halliburton which had responsibilities for the cement plug.

The state of the world's human rights

2010-05-27T15:35:00.001+01:00

Amnesty International has published its report for 2009 - see State of the World's Human Rights. It is a critical examination of the situation including the United Kingdom. Further comment may be see at UK Human Rights blog.

The UK is criticised in several areas notably: violation of the human rights of people held overseas; the use of unenforceable diplomatic assurances in deportation cases; control orders; the ability (under the Coroners and Justice Act 2009) for the executive to replace an inquest with an inquiry under the Inquiries Act 2005; the disproportionate use of force in the Policing of the G20 conference etc.

Chilcot's Iraq Inquiry - still on going

2010-05-22T19:20:00.000+01:00

Up to the end of March 2010, the Chilcot Inquiry has cost £2,237,700 - see the Inquiry's website. The Inquiry members have recently visited France and the USA. The Inquiry sittings so far have not administered a "killer blow" to anyone but have revealed a lot of interesting information. The inquiry has been criticised in some quarters for not employing experienced barristers to examine witnesses but, had it done so, all those attending might well have demanded legal representation with a consequential huge rise in costs. It is an inquiry made up of Privy Councillors and is a fact-finding exercise. It is not a judicial inquiry and is certainly not intended to be like a court apportioning blame.

A useful website on this topic is Iraq Inquiry Digest

The proposed Inquiry relating to alleged U.K. complicity in torture

2010-05-22T17:10:00.002+01:00

The United Kingdom is a signatory to the "Convention against torture and other cruel, inhuman or degrading treatment or punishment" - (The Torture Convention). The U.K. signed the Convention on 15th March 1985. Article 2 requires signatories to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. The offence of torture is to be found in the Criminal Justice Act 1988 s.134. A prosecution requires the consent of the Attorney-General.

The last few years have seen a growing sense of unease about the possibility of U.K. officials being complicit in acts of torture. There has also been concern about British involvement in the use of "Extraordinary Rendition" by the U.S.A. Further concerns were raised by the Binyam Mohamed litigation.

Both Liberty and Amnesty International have welcomed the announcement that there will be an Inquiry.

Liberty has set out a "timeline" of torture allegations.

Amnesty has listed some questions which, in their view, ought to be answered.

One such question relates to the use of Intelligence Services Act 1994 section 7. "If, apart from this section, a person would be liable in the United Kingdom for any act done outside the British islands, he shall not be so liable if the act is one which is authorised to be done by virtue of an authorisation given by the Secretary of State under this section".

Amnesty are asking for greater information about the use of this section the extent of which is unclear. Just what has been "authorised" which would otherwise have fallen within the criminal law in the U.K.?

Details of the Inquiry have yet to be announced - e.g. will it be held under the Inquiries Act 2005; who will chair it; what will be the exact terms of reference; what powers will it have to order production of witnesses and documents; will it sit in public or private or a mixture of both etc.

The new Foreign Secretary's announcement that there will be an Inquiry into these matters will (hopefully) serve to clear up these matters which, without an adequate answer, will stain the reputation of the U.K. and of the previous Labour government.

Foreign Affairs and the new government: will they be all that much different? No. 2

2010-05-20T18:18:00.012+01:00

The Coalition government has published its full Coalition Agreement and the Policy statements for Foreign Affairs may be seen at paragraph 15. Interestingly, reform of the United Nations Security Council is referred to and an intention to support Japan, India, Germany, Brazil having permanent seats on the Council as well as "African representation".

The new Foreign Secretary has announced that there will be an inquiry into allegations of British complicity in torture - The Guardian 21st May. Hague stated - "It is vital to remember that torture does not help us defeat terrorists; it helps them to try to justify their hostility to us". The precise form and details of the Inquiry remain to be announced. The Guardian reports that "government lawyers" are expected to offer out of court settlements to certain claimants following the case of Al Rawi and others v Security Service and others [2010] EWCA Civ 482. In that case, the Court of Appeal refused the use of "Special Advocates" in civil proceedings. "Special Advocates" have been used in some areas (e.g. at the Special Immigration Appeals Commission) so that the evidence against a person is not disclosed other than to the judge(s) and the special advocate(s). It is not disclosed to the affected individual or to his own lawyer.

See also The Guardian 20th May - "Torture and Rendition: Inquiry expected to expose officials who colluded".

Foreign Affairs and the new government: will they be all that much different?

2010-05-16T12:36:00.002+01:00

A new British government has been formed under Prime Minister David Cameron. It is a coalition of Conservatives and Liberal Democrats. However, so far, there is very little solid evidence that foreign policy will change very much from that of the predecessor Labour government.

A meeting between the new Foreign Secretary (William Hague) and the United States Secretary of State (Hillary Clinton) has reaffirmed the so-called "special relationship" between the UK and the US. See Foreign Office. In recent years, many people have viewed this "special relationship" as placing the UK in a subservient position to the US and would wish to see a much more "equal" and critical partnership. It now appears that Cameron and Hague might be trying to - (at least) - create an impression of independence from Washington - "a solid but not slavish relationship" - see Express 16th May. There are also serious concerns which have not been adequately addressed regarding possible involvement of UK personnel in matters such as extraordinary rendition and torture - see, for example, APPG on Extraordinary Rendition.

It is also noticeable that the PM met with President Karzai of Afghanistan. See Downing Street. Very little detail has been released about their discussions though some reports suggest that Hague has stated that Karzai must "meet his commitments". The UK's involvement in Afghanistan is a matter of huge public concern. It is also a commitment with massive financial costs which weighs heavily at a time of serious financial crisis with the new UK government being faced with an unprecedented deficit. Hague has indicated that Britain's military would stay involved in Afghanistan until "their job is done" but clear definition of what is required for it to "be done" is lacking. To the general public in the UK the exact role remains unclear and the timescale endless.

A further worry is the stance being taken via-a-vis Iran. There is no doubt that even the possibility of Iran acquiring nuclear weapons is a major concern but it has been announced that the US and UK will be seeking a stronger Security Council Resolution against Iran and one which will threaten "serious consequences". Maybe there ought to be a very serious consideration about just what the UK, with its present fragile economy, can offer in terms of enforcement of any such resolution.

A further question is - just what will the UK try to do to secure better regard for Human Rights in Iran and in many other countries? A necessary pre-condition to achieving anything must be that the UK's own stance on human rights both at home and abroad.

Another development is the designation of the waters around the Chagos Islands as a Marine Reserve. This was announced in early April - just prior to the UK General election being called - see BBC News. The removal of the Chagossians from their homeland is now seen as an appalling foreign policy decision by the Labour government of Harold Wilson though little has been done since to resolve the issue. The airbase of Diego Garcia is of strategic military importance. Although the British government has indicated that the territory might be ceded to Mauritius, this is unlikely until such time as the base is not required. The cynic might say that amounts to "never". See also Chagos Conservation Trust

In the recent meeting between Hague and Clinton, it is thought that Hague raised the question of the Falkland Islands. It is rather unlikely that the new British government will adopt a markedly different stance to its predecessor and there are domestic political difficulties in the way of them doing so. Previously, Clinton had suggested that she might act as a "go between" in seeking to resolve the dispute between London and Buenos Aires. Perhaps some re-appraisal is called for though falling short of a transfer of sovereignty. After all, the dispute is not going to miraculously disappear.

It will be essential that a careful watch is maintained as to just how the new government takes foreign policy forwards. So far, in foreign affairs, the outcome of a change of government has been "more of the same" or just a continuation of the Labour government policy in a number of areas of crucial importance for the UK.

The United States has defended the use of "drones"

2010-04-18T14:12:00.000+01:00

Watching the Law (16th February) referred to how the United States is using drones to attack and eliminate particular targets. It appears that Harold Koh, legal adviser to the U.S. State Department, has argued that the use of drones has a legal basis in international law - see Wall Street Journal. Further comment on this topic may be seen at European International Law Journal Blog - here.

"Universal Jurisdiction" Arrest Warrants and the U.K.

2010-03-20T17:41:00.000Z

In December 2009, clearly much to the embarrassment of the present British government, the City of Westminster Magistrates' Court issued an arrest warrant for the former Israeli Foreign Minister Tzipi Livni - see The Guardian 14th December 2009. The court issued the warrant at the request of lawyers acting for some of the Palestinian victims of the fighting but the warrant was withdrawn when Livni cancelled her visit to the U.K. The warrant was an indication of the increasing use of "universal jurisidiction" in order to pursue those alleged to have committed certain crimes (e.g. war crimes etc). Israel claims that Operation Cast Lead was necessary for self-defence of the population against Hamas rocket attacks from Gaza.

The appalling conflict in former Yugoslavia became the course of a further arrest warrant issued against Dr Ejup Ganic a former President of Bosnia Herzegovina - see The Independent 20th March. Ganic was arrested at London (Heathrow) Airport and held in custody for 10 days before being granted bail.

The U.K. Ministry of Justice has put forward proposals to restrict the ability of private individuals to apply for such warrants - see Ministry of Justice. Government argues that the "best" solution in relation to non-British nationals alleged to have committed a universal jurisdiction offence abroad is that only the Crown Prosecution Service (CPS) would be able to apply for a warrant. The right of a private individual to apply for a warrant in respect of a universal jurisdiction offence would be restricted to cases committed in the U.K. or if the suspect was a British national or a member of the U.K. Armed Forces.

The CPS operates under the "superintendence" of the Attorney-General but the head of the CPS is the Director of Public Prosecutions (DPP). Nevertheless, the proposal that only the CPS could apply for a warrant in a case such as Tzipi Livni seems somewhat more acceptable than an earlier proposal that a warrant could only be issued with the Attorney-General's specific consent.

Australia and New Zealand permit individuals to apply for warrants though any subsequent prosecution requires the consent of the relevant Attorney-General. In Canada, the Attorney-General would be given notice of any application for a warrant and would be able to make representations to the court and also any prosecution may only take place with the Attorney-General's consent.

Joshua Rozenberg, writing in the Law Society Gazette, has summarised the current situation and he argues that changing the law in the way suggested by the Ministry of Justice would be sensible. The proposed change runs the risk that the U.K. will be seen as becoming less committed to universal jurisdiction. Also, the UK government appears to be acting so as to avoid embarrassing rebukes from States with which the UK has friendly relations - see Telegraph 15th December 2009.

Armenia and Turkey

2010-03-06T20:11:00.007Z

The Republic of Armenia is a landlocked country to the NE of Turkey and to the north of Iran - see Geography. This is a strategically important region. The country's modern constitution dates from July 1995 though it became independent of the former Soviet Union in 1991. There is a long standing disagreement between Armenia and Turkey regarding the horrific events during World War I when possibly well in excess of one million Armenians were killed - see here for more detail.

In October 2009, Turkey and Armenia signed a historic accord normalising relations between them after a century of hostility. However, Armenia wants Turkey to recognise the killings as an act of genocide but successive Turkish governments have refused to do so. See Armenia, Turkey sign historic agreement.

A vote in a committee of the United States legislature has called upon President Obama to classify the killings as genocide and, in consequence, Turkey withdrew its Ambassador to the U.S. - see The Times 5th March 2010. Ankara accepts that many thousands of Christian Armenians living in what was then eastern Anatolia died in blood-letting by Muslim Ottoman troops in 1915. It rejects the term “genocide” and says that the 1.5 million figure for the final death toll is exaggerated. Experts, including some of Turkey’s own most respected historians, disagree. Many governments, including the US and the UK, have refused to use the term genocide in connection with those events.

An analysis of the situation is the opinion of Geoffrey Robertson QC which was published in 2009. The learned author concludes that the treatment of the Armenians in 1915 answers to the description of genocide. See also Armenian Embassy London.

There is little doubt that what is now referred to as genocide existed as an international crime prior to the Genocide Convention of 1948 but it was ill-defined and tended to be classified under the more general heading of "crimes against humanity". A Resolution of the UN General Assembly in 1946 described genocide as a denial of the right of existence of entire human groups and went on to affirm that it was a crime under international law. However, prior to the 1948 convention, the crime was not well-defined though events such as the extermination of Jews was an obvious example. It required the 1948 Convention to provide a definition and to impose obligations on States to criminalise genocide through their national law and to co-operate judicially so as to suppress the crime. According to the Italian jurist Antonio Cassese (International Criminal Law 2nd Edition at p.127) - "Genocide acquired autonomous significance as a specific crime in 1948, when the UN GA adopted the Genocide Convention."

In recent years various International Tribunals have sought to interpret the Convention and to offer judicial rulings on the various elements of the crime. Cases have arisen in the International Criminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda.

It is reported that The White House has now moved to block the Armenian Genocide Bill which is going throught the US Congress - see here.

The vote in the US Congress is unlikely to assist the process of reconciliation between Armenia and Turkey and probably the involvement of other nations, other than maybe as honest brokers, is also unlikely to be helpful. It would seem desirable in the longer-term interests of both Turkey and Armenia that some form of resolution is achieved but it is unclear at the present time how, if at all, a satisfactory resolution will be brought about..

In English Law, the crime of genocide is now to be found in the International Criminal Court Act 2001.

Addendum Monday 8th March: Norman Stone (Professor Emeritus of Modern History at Oxford) argued in The Times that the horrific events of 1915 ought not to be classified as genocide and he points out that the Turks actually put 1600 men on trial and executed a governor. He sees the US Resolution as counterproductice and likely to encourage Turkey to turn away from the West and look toward China who, he says, are "quite active" in Ankara.

See also Denial of Armenian Genocide (Wikipedia).

The Falkland Islands - Oil and Gas Exploration - Dispute

2010-02-24T12:08:00.002Z

It is reported that a dispute between Argentina and the United Kingdom over exploration for oil near to the Falkland Islands has been escalated to the United Nations. See The Times 24th February 2010. The dispute over oil and gas is in addition to the claim by Argentina for sovereignty over the islands - referred to by Argentina as Islas Malivinas. This is a complex issue which will merit a more detailed post in the near future. Since 1982, Britain has maintained a stronger military presence in the South Atlantic region than it did previously.

Addendum: 3rd March 2010 - it seems that whilst America is saying they remain neutral on this issue, they seem to be cosying up to Argentina - The Times. It could be a genuine offer by the US to mediate but the official British position seems to be that there is nothing to mediate about and that is probably the Argentine position also. Argentina very recently secured support for its stance from other South American States. Like it or not, without resolution this issue will fester and will have to be sorted out sooner or later.

British Police used a drone illegally

2010-02-22T11:27:00.001Z

Interestingly, Merseyside Police in the UK have been using a drone unlawfully - Telegraph 22nd February. Apart from the obvious dangers of flying such an aircraft near to other aviation operations (e.g. Liverpool Airport) this development is raising further concerns about civil liberties. Many fear that the U.K. has become a surveillance society or a form of Panopticon State.

It appears that the drone was used to catch a thief - see Daily Mail. For another view on the Merseyside "drone" see here.

Drones - is their use breaching international law?

2010-02-16T20:35:00.008Z

The use of military drones (Unmanned Aerial Vehicles or UAV) has been questioned by the United Nations Special Rapporteur on Extrajudicial Executions (Mr Philip Alston). The issue is whether they are being used for such executions. Mr Alston is concerned that they may be being used in a framework which breaches international humanitarian or human rights law. He also claimed that strikes have killed civilian targets.

Does the use of a drone really differ all that much from a squad of soldiers coming over the hill and shooting the enemy? Is their use both legal and a legitimate military response? Is there a legal difference between their use in Afghanistan as opposed to Pakistan? See:

ABC News

Washington Independent

Afghanistan Conflict Monitor

and also see UN Involvement in Afghanistan which is authorised by UN Security Council Resolutions.

The International Security Assistance Force and the UN Assistance Mission in Afghanistan

An interesting website relating to Extrajudicial Executions is that of the Centre for Human Rights and Global Justice, New York University School of Law

An interesting item appears on Opinio Juris. Alan Dershowitz defends Israeli assassinations in Dubai. Something of a comparison is made with the use of drones.

Torture - allegations of UK complicity

2010-02-13T18:26:00.005Z

Man's inhumanity to man
Makes countless thousands mourn
from "Man was made to mourn" by Robert Burns (1759-96)

The cruel and hideous practice of torture has been with the human race since time immemorial and considerable ingenuity has been applied to finding new ways of inflicting excruciating pain on a fellow human being. Attempts to eradicate this evil have been well-intentioned but it seems that little more than minimal success can be claimed since there is unequivocal evidence that torturers continue to flourish in many parts of the world - see here for a reasonable summary of recent uses of torture. "The torturer has become, like the pirate or the slave trader before him, hostis humani generis, an enemy of all mankind" - (case of Filartiga 1980 US Court of Appeals, Second Circuit).

This week saw the English Court of Appeal (Civil Division) give judgment in the case of R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65. This judgment was concerned with whether 7 paragraphs could be included in the court's judgment. The Foreign Secretary argued that they should not be included since to do so would damage intelligence sharing arrangements with the USA. This was the so-called "control principle." The court found against the Foreign Secretary.

Article 5 of the Universal Declaration of Human Rights states - "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Those words have been repeated in, for example, the United Nations Convention against Torture or other Cruel Inhuman or Degrading Treatment 1980. They also appear in Article 3 of the European Convention on Human Rights.

The 1980 Convention defines torture in Article 1 and imposes on States a number of duties including, by Article 2, a duty to take effective legislative, administrative, judicial or other measures to prevent acts of torture. The prohibition against torture shall be absolute and shall be upheld also in a state of war and in other exceptional circumstances" - see 1980 Convention. Of course, the 1980 convention is dealing with torture (as defined in the convention) and does not deal with the infliction of ill-treatment falling short of torture, for example, degrading treatment. This is a major difference between the 1980 convention and the European Convention on Human Rights which does extend its protection beyond the infliction of torture.

The British government claims that it takes its obligations seriously and that it adheres to the law - see Foreign and Commonwealth Office 12th February 2010.

The 2010 Question: Iran

2010-01-30T23:03:00.004Z

The 2010 Question

This phrase, used by Tony Blair in his evidence on Friday 29th January to the UK's Chilcot Inquiry raises the spectre of future problems with Iran. The fear is that they are working to acquire a nuclear weapon capability. Since 2006, a number of United Nations Security Council Resolutions have been directed against Iran with a view to preventing proliferation of nuclear weaponry. None of these, as yet, use the words “all necessary means.”

The legality of military action against Iraq – (if indeed it was legal) – was based on Resolution 678 stating that “all necessary means” could be used. The issue in 678 was the eviction of Iraqi Forces from Kuwait in 1990. Nevertheless, 13 years later, 678 was used as the basis for the coalition action against Iraq.

Blair stated that world leaders may have to face up to the Iran issue – the “2010 question.” If some resolution is passed saying “all necessary measures” might it then be used even years later to justify military action. If the chain of resolutions relating to Iraq is any guide then it would seem that it could be. In essence, that was the view taken by Britain's Attorney-General at the time and was adopted by the British government.

Resolutions relating to Iran: 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1887 (2009).

UN Resolutions raise interesting questions of interpretation. Sir Michael Wood QC - who gave evidence to the Chilcot Inquiry - wrote about such interpretation. Sir Michael considered the Iraq War to be unlawful as did his Deputy at the time Elizabeth Wilmshurst. Both gave evidence to that effect at the Chilcot Inquiry.

A blog returns

2010-01-30T22:04:00.002Z

This blog is now back in use. On 25th August 2006 I discontinued using this blog. I have now brought it back into use and there will be occasional posts on human rights and the fascinating subject of international law.